Big tax changes on the horizon for small business owners

On July 18, 2017 the department of finance released a consultation paper they publicized as a crackdown on perceived tax loopholes for wealthy business owners.

Personally, we had an uneasy feeling as we read through the proposal. The changes will have significant adverse implications on tax planning strategies widely used for several years by many business owners; not just the wealthy ones! As tax advisers, we always felt the strategies we implemented were available (and encouraged) to compensate our business owner clients for the risk they take, for the jobs they create and for the fact they do not have job security, employment benefits, employer sponsored pension plans, employment insurance, sick days or vacation days. The latest Key Small Business Statistics released by Statistics Canada in 2016 revealed that small businesses employ 70.5% of the labor force in Canada, were responsible for 87.7% of net employment change, accounted for 27% of R&D and contributed an average of 30% to the GDP of their respective province. They are the backbone of our economy! How will these figures be impacted over the long term?

Here is a brief review of the tax planning strategies targeted by the proposal.

Income splitting and multiplication of the capital gains exemption

Corporate structures are commonly set-up with all family members owning shares of the corporation, either directly or indirectly through a family trust. Income splitting can be achieved by paying dividends to lower income family members. The capital gain exemption can be multiplied on the future sale of the business by allocating the capital gain incurred to various family members based on share ownership or per the discretion of the trustee(s) of the family trust.

The “kiddie tax” was introduced in 1999 causing private company dividends paid to minor children to be taxed at the top personal tax rate. Currently, income splitting with minors can only be achieved by paying them a reasonable salary based on the work they perform for the business.

Starting in 2018, the Department of Finance proposes a number of measures to extend the “kiddie tax” to all related family members, whether minors or adults. Dividends received from related private corporations will be subject to the highest personal tax rate unless the amount is reasonable in the circumstances based on the recipient’s labor contribution and/or invested capital.

The capital gain exemption will no longer be available to minors, will not be available for any family member if the capital gain is subject to the extension of the “kiddie tax” rules above and will no longer be available for gains that accrued while the shares were owned by a family trust.

Tax deferrals when passive investments are held inside of a private corporation

Incorporated business owners can take advantage of tax deferrals by leaving passive investments inside of their corporation. For example, a corporation that earns income eligible for the small business deduction pays a combined federal and provincial tax rate of 10.5% in Manitoba. An individual subject to the top personal tax bracket would pay 50.4% in tax. Therefore, a 39.9% tax deferral can be achieved by leaving excess funds inside a corporation allowing for better compound growth and a larger nest egg in the future.

The consultation paper proposes to eliminate the advantage of retaining income in a private corporation. While the Department of Finance did not release any draft legislation they did set out a number of different approaches under consideration.

While it remains to be seen what form the rules will take, they will no doubt result in significantly higher taxes for the majority of business owners. Alternative planning strategies such as individual pension plans (IPPs) and retirement compensation arrangements (RCAs) will likely become more popular in the future.

Converting dividends into capital gains

Much less common than the previous two strategies was a practice we knew was under scrutiny so the proposed draft legislation came in as less of a surprise. The strategy involved embarking on a series of transactions with the effect of converting highly taxed dividends income into lower taxed capital gains.

The consultation paper proposed draft legislation to expand current anti-surplus stripping rules to capture these transactions. Amendments to these rules are effective as of July 18, 2017.

Conclusion

These proposals, if and when they become law, will have considerable impact on tax and estate planning strategies commonly implemented by incorporated business owners. We will closely monitor and advise you of any significant changes or revisions to these proposals as they occur and once they are eventually enacted. No doubt, they will require a careful review of existing corporate structures as well as an analysis of future tax planning opportunities.

Please do not hesitate to contact us if you would like to discuss your situation in more detail.

This information transmitted is intended to provide general guidance on matters of interest for the personal use of the reader who accepts full responsibility for its use, and is not to be considered a definitive analysis of the law and factual situation of any particular individual or entity. As such, it should not be used as a substitute for consultation with a professional accounting, tax, legal or other professional advisor.

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